WE WERE YELPLESS, YELPLESS, YELPLESS YELPLESS

A couple of blogs ago, we disparagingly looked at lawyers who are sneaking “non-disparagement” clauses into service contracts, making it an actionable offense to criticize their client’s business online, never mind that the complaint is 100 percent accurate. We were against these “not speaking truth to power” clauses then, and by George, two weeks later, we are still against them! Yessir. In this day and age, that almost counts as a timeless verity.

But as night follows day, and the NSA follows everyone, now comes an equally bad flip-side. The Wall Street Journal reports on business owners who are vexed about reviewers posting harsh, brutally negative remarks about their companies on Yelp that are not only patently false, but also anonymous, and when they try to have them removed, or identify the posters, Yelp is unsympathetic.

The WSJ story mentions Joe Hadeed, who has a large carpet cleaning business in Virginia, suing seven posters on Yelp who he says are doubly fraudulent – not real people making not real complaints – and demanded Yelp reveal the actual identities of the posters/poseurs. Yelp declined, and both the Alexandria Circuit Court and the Virginia Court of Appeals held Yelp in contempt. Now it’s headed to the state Supreme Court.

Why would people place fake ads anonymously online, you ask? No, you didn’t ask that. Why do people post videos of themselves committing crimes? It’s the internet. ‘Nuff said.

In its defiance, Yelp is contending that the reviews are protected under the First Amendment and in any case, Hadeed hasn’t made his case that the reviews are fake.

This sounds like one of those “Look over here! Wait! Look over there!” type arguments. Is Yelp saying that if the reviews are fake, they’d take them down? No. Is Yelp maintaining that maliciously false and libelous reviews are covered by the First Amendment? I sure hope not. Is Yelp saying hey, tough noogies, you can’t sue us, because our ass is covered from liability for defamation claims by our reviewers under the Communications Decency Act of 1996, and trying to police which reviews are real and which aren’t would be enormously time-consuming and expensive and involve us officiating disputes that we really don’t want to devote resources to? Ahh, now I think we’re getting to the nub of the matter.

I mean, you’d think Yelp and similar sites would have a vested interest in keeping the site credible by weeding out bogus comments, and perhaps they do, but not according to Hadeed and many other business owners who feel “Yelpless,” a word I believe I just coined, although I’d be pretty astonished if that turned out to be the case.

Here’s where I feel compelled to point out that anonymous and/or bogus reviews aren’t unique to Yelp, I sometimes use Yelp myself, both as a consumer and to praise or bury services (but not anonymously) and that if your company has received a bad review and you want to fight back, there’s even some recommendations on how do so on this very site.

Disclaimers and caveats aside, I have to think the whole First Amendment argument gets pretty murky when you’re talking about people who insist on remaining anonymous. The First Amendment exists in order to protect someone’s right to express their opinion, but inherent in that is taking ownership of that expression. After all, logically there would be no need to guarantee someone’s right to say something if there was no way of identifying who that person was in the first place.

And yes, there may be cases where anonymity is prudent (you’re an employee, for instance, or have good reason to fear retaliation), but there are ways to thread that needle.

I’m all for bad reviews – they’re generally more fun to read and hopefully keep business owners responsive and on their toes. But reviewers have no more right to write anonymous bogus blogs than businesses have a right to demand that truthful criticism by real people be verboten.